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Broccoli Mandates and the Commerce Clause

“If the government can do this, what, what else can it not do?” asked Supreme Court Justice Antonin Scalia this week in arguments on the constitutionality of the requirement that nearly all Americans buy health care insurance or face a penalty.

“All bets are off,” Chief Justice John G. Roberts Jr. gravely added.

Thus did this week’s Supreme Court arguments over the Obama administration’s health care law emerge as a historic test of federal power versus individual liberty, all the more remarkable given that just a few weeks ago, the overwhelming view of constitutional scholars was that this wouldn’t be a close case, with even conservative justices likely to uphold the law.

That it now looks not only possible but perhaps likely that the Supreme Court will strike down the health care law as unconstitutional, probably in its entirety, is a tribute to some skilled and passionate advocacy and the persuasive power of conservative media — and what seems a breathtaking departure from decades of Supreme Court jurisprudence.

It’s always hazardous to predict a Supreme Court outcome, no matter how pointed the questioning at oral argument. This seems especially true when the legal debate over health care has become so intensely politicized. Pickets were marching around the Supreme Court building. By their questioning, the four conservative Republican appointees seemed to signal their distaste for the law, while the four liberal Democratic appointees seemed to embrace it. That left Justice Anthony M. Kennedy in his usual position as the swing vote, and he asked some tough questions, at one point suggesting the government faced “a heavy burden of justification.”

While the health care law has generated intense passions on both sides, I don’t share them. Although it seems well established that many Americans are burdened with costly and yet woefully ineffective health care, if I’d been elected president, I probably would have focused my attention on the financial crisis and the economy and moved more slowly on health care reform. But I’m no expert on the byzantine subject, which has confounded more than one administration, and as far as I can tell, the legislation has had no effect on me, my family members or friends, all of us fortunate enough to have adequate health coverage.

But limiting Congress’s power to legislate under the commerce clause is another matter, and could have far-reaching, and unintended, consequences beyond health care. Despite the often opaque and convoluted arguments this week, the legal issues don’t strike me as all that complicated. No one disputes that Congress can enact laws to carry out powers enumerated in the Constitution or necessary and proper to effectuate those powers. Among the enumerated powers: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

As the nation’s economy evolved from largely local markets to regional, national and increasingly global ones, the Supreme Court has taken a progressively broader view of Congressional power under the commerce clause, even when individual freedom had to be sacrificed. This included limiting one farmer’s ability to plant wheat during the Depression because his production affected the overall supply and hence had an effect on interstate commerce, and, more recently, upholding a federal ban on homegrown marijuana even if the plant never crossed state lines. The court has stressed that Congress needs only a “rational basis” for concluding that economic activity might affect interstate commerce, and even Justice Kennedy’s somewhat stricter standard of a “tangible link to commerce” based on “empirical demonstration” seems readily met here.

With famed hospitals like the Cleveland Clinic mounting national ad campaigns and health insurers operating in national markets, there would seem to be little argument that health care affects interstate commerce and that one person’s decision to buy or not buy insurance, just like one farmer’s decision to plant wheat, would affect a national market. Congress has estimated that health care services and insurance account for 17 percent of the gross domestic product and amount to more than $2 trillion annually.

But constitutional opponents of the law have seized on the mandate requiring most people to buy health insurance or face a penalty as an unconstitutional infringement of individual liberty. They’ve argued that a ban on individual activity that, magnified in the aggregate, might affect interstate commerce (like wheat farming) is fundamentally different from requiring someone to do something or face a penalty, as the health care legislation does. A lower court judge ruled that “inactivity” — the failure to buy health insurance — by its very nature cannot affect interstate commerce.

Photo

In Supreme Court arguments over the health care mandate, discussions of the commerce clause came down to vegetables.Credit
Konrad Fiedler/Bloomberg News

Until this week, most scholars seemed to think this would be treated by the justices as a distinction without any special significance. “It’s a silly distinction,” Douglas Laycock, a University of Virginia law professor, told me this week. Opponents of the law “have gotten an enormous amount of mileage out of ‘inactivity,’ but that really has nothing to do with the regulation of commerce,” he said. One hundred professors from many of the country’s major law schools signed a statement arguing that those seeking to overturn the law “seek to jettison nearly two centuries of settled constitutional law” and “there can be no serious doubt about the constitutionality” of the insurance mandate.

But then came Justice Scalia’s now famous invocation of broccoli. “Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” Justice Samuel A. Alito Jr. chimed in, asking Solicitor General Donald B. Verrilli Jr. to answer “as succinctly as you possibly can.”

Mr. Verrilli was anything but succinct: “The class to which that requirement applies either is or virtually is most certain to be in that market when the timing of one’s entry into that market and what you will need when you enter that market is uncertain. ...” He never got around to discussing broccoli or, for that matter, any other antioxidant. No wonder the justices were soon pondering the slippery slope of federally mandated purchases that might also be good for us, like health club memberships.

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Mr. Verrilli was trying to make the point that a decision not to buy broccoli doesn’t increase the price others must pay for broccoli in the same way that a decision to forgo health insurance increases the premiums others must pay for health insurance. But it seems to me that a succinct answer to Justice Scalia’s question is that the commerce clause would not limit Congress’s ability to regulate broccoli — if members of the House and Senate were crazy enough to pass legislation requiring all of us to eat green vegetables and if that were deemed a rational way to regulate commerce. The same could be said of health clubs.

A lengthy Wall Street Journal editorial last week argued that “the reality is that every decision not to buy some good or service has some effect on the interstate market for that good or service.” That may well be true, and Mr. Verrilli should have admitted it rather than getting entangled in unconvincing semantics.

That doesn’t mean we would all be required to eat broccoli. Congress has the constitutional power to pass many bills that would strike most people as idiotic, but as a popularly elected assembly, it doesn’t. The Supreme Court itself has said: “The principal and basic limit on the federal commerce power is that inherent in all Congressional action — the built-in restraints that our system provides through state participation in federal governmental action. The political process ensures that laws that unduly burden the states will not be promulgated.” And absurd bills like a broccoli mandate are likely to fail other constitutional tests.

Mr. Verrilli seems to have done a poor job at articulating the limits to Congressional power under the commerce clause, but the Supreme Court has already done that for him in two relatively recent cases that, for the first time in decades, limit its scope. Both involved federal efforts to exercise traditionally local police powers — to ban firearms near schools and to impose civil penalties for gender-motivated violence against women — under the guise of the commerce clause. Justice Clarence Thomas argued that such a broad reading would confer a federal police power over the entire nation. In both cases, it was arguably a stretch to argue, as respective administrations have, that carrying a gun near a school or assaulting a woman because of her gender has anything to do with interstate commerce.

The same could no doubt be said of many activities traditionally reserved to the states, but defenders of the health care law needn’t address them. The Supreme Court has established limits to the commerce cause, which is regulating activity that has little or nothing to do with commerce. The multitrillion-dollar health care and insurance industries surely fall well within that boundary.

It seems curious that opponents of the health care law are now looking to the commerce clause, as opposed to the Bill of Rights, as a bulwark of individual liberty. To the extent it ever was, that battle was lost generations ago. To Depression-era farmers, it was no doubt an affront to individual freedom that the federal government had the power to tell them what crops not to plant.

Of course, the Supreme Court could reverse decades of its own jurisprudence and fundamentally redefine and limit the power of Congress to regulate interstate commerce. But conservatives should be careful what they wish for. The commerce clause was a response to the chaotic and often conflicting state regulations that hobbled the nation under the Articles of Confederation. Its interpretation over the ensuing two centuries has wisely reflected the growing nationalization and globalization of economic activity and, by doing so, has promoted economic growth.

A version of this article appears in print on March 31, 2012, on Page B1 of the New York edition with the headline: Commerce, Health Care And Broccoli. Order Reprints|Today's Paper|Subscribe